Argenta case documents ruled public for most part

— The public is entitled to see the records that led to the firing of the Argenta Community Development Corp. executive director but not to know the name of his accuser, an Argenta employee, a Pulaski County Circuit judge ruled Tuesday.

However, Judge Alice Gray agreed to keep the records sealed until the Arkansas Supreme Court can decide on Steve Ficklin's appeal. The Arkansas Democrat-Gazette has been seeking the records' release under the Arkansas Freedom of Information Act.

Whatever Ficklin is accused of doing remains a mystery that was only hinted at during the three-hour hearing that included testimony from Ficklin, Argenta board president Steve Mitchell and board vice president Kelly Conley.

Both Mitchell and Conley, a branch manager for U.S. Bank, testified that Conley kept the records at his bank to keep any staff members from seeing them. Conley, who oversaw the probe that led to Ficklin's firing, described the investigation's findings as "toxic."

"The material in those documents has certainly destroyed my opinion of his character," said Conley, who also made the recommendation to hire Ficklin.

Ficklin, who spent seven minutes on the witness stand, denied any wrongdoing and testified that the nonprofit's investigation was unfair sincehe was not allowed to fully challenge the claims against him. Those allegations are so embarrassing that he would have to leave the state if they were made public, Ficklin testified Tuesday. Nothing could repair his reputation, even if he is publicly vindicated, he told the judge.

"To my knowledge, I don't think any amount of money would make me whole if that was released," he said.

His attorney, Lloyd "Trey" Kitchens, argued that the materials are exempt from public release because the invasion of privacy outweighs any interest by the public. He told the judge that the records contain Ficklin's home address and a description of his property - information that if released would be a "gross" violation of privacy. The newspaper's interest in the documents should be no gauge of public interest, Kitchens argued.

"'Toxic' documents sell more newspapers," he said.

Ficklin was fired in August by the North Little Rock nonprofit, and Tuesday's appearance was his second court hearing as he attempted to prevent the Argenta group from releasing the documents that outline the allegations against him.

Gray has twice rejected Ficklin's privacy argument, ruling that the records and a report that summarizes them should be made available to the public. At a September hearing, she said the summary report describes a "violation of the public trust." She ruled similarly Tuesday that the Freedom of Information Act mandates their release, but her decision came with a condition: There is "no compelling public interest" in the name of the accuser.

"The court will redact the portions that identifies the accuser," the judge said.

The judge's redactions could extend to the identities of any witnesses, she said, if those names might reveal the accuser's identity.

Gray's refusal to release the records came over the repeated objections of Jess Askew, the attorney for the Democrat-Gazette. She also prevented Askew from questioning Conley and Mitchell too closely about how the records were created and what they contained, supporting objections from Kitchens that Askew's questions were actually an effort to subvert the seal on the records.

"I am completely handicapped and disabled by not being able to see the evidence," Askew told the judge. "I don't know how I can be a lawyer and represent a client when I'm the only one in the room who hasn't seen the evidence."

The judge's decision was mainly a victory for the Argenta group, who wanted to release only a redacted version of the records that withheld the names of everyone but Ficklin.

"We believe there's no compelling public interest in the names of anyone besides Mr. Ficklin," Argenta attorney John Coulter told the judge.

Mitchell, the president of the nonprofit that restores dilapidated housing and empty commercial buildings in the historic Argenta district and midtown, said the names of "virtually" the entire five-member staff are contained in the report as are the identities of several nonemployees.

He said the records are summaries of interviews with staff and those nonemployees that were collected over about 10 days before the Aug. 2 decision to fire Ficklin. Mitchell told the judge that the findings were potentially embarrassing to only one other employee, the worker who made the complaint against Ficklin. Mitchell said he wanted to redact all of the names but Ficklin's because determining the accuser would be easy given the nonprofit's small staff. He testified that the accuser "had been put through enough," and that releasing her name tothe newspaper would be embarrassing.

Conley told the judge he also supported redacting the report because employees would be reluctant to complain about wrongdoing at the agency if they knew their names would be made public.

Arkansas, Pages 9, 14 on 10/31/2007

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